Friday, May 30, 2008

UCLA lawprof Eugene Volokh comments on the legal aspects of German artist Gregor Schneider's planned performance piece that would include an actual person dying. His "tentative answer" is that it's probably legal: "The dying are as entitled to be in a place as anyone else, and invite people to visit them or see them. Nor is there any reason that I can see why a museum's drawing attention to this, or charging money for it, would be illegal under existing law."

There are also First Amendment considerations at play: "If the dying person is using the occasion to speak to people who come, either as a group or one at a time, it seems to me that this would be constitutionally protected speech, even if admission is charged. ... The tougher constitutional question is whether simply deliberately going to die in a place set aside for such an occasion, and publicized as a place for such an occasion, is protected expression even if nothing is said. That's hard to tell; compare Rumsfeld v. FAIR (holding that conduct may be protected by the First Amendment only if it's 'inherently expressive' so that '[t]he expressive component ... [is] created by the conduct itself [rather than] by the speech that accompanies it,' something that might not be so given that death as such is not inherently expressive) with Brown v. Louisiana ... (holding that silent presence at a racially segregated library was protected by the 'freedom of speech and of assembly'). ... I'm sure that ... some audience members may just ogle rather than being enlightened. ... And I sympathize with concerns that some of the people being exhibited might feel degraded by the process. But I don't think this justifies blocking those dying people ... who choose to display themselves in public from doing so (especially if they are speaking in the process) ...."

Public Knowledge's Gigi Sohn spoke about the orphan works legislation at the Eighth Annual Intellectual Property Symposium today. The text of her speech is here. InformationWeek has a summary here.

Among other things, she addresses what she calls "the fear, uncertainty and doubt" being raised by opponents of the bill, including the following:

"Myth #4: The bills would mandate registration of all visual art in expensive, private registries, and not registering a work would automatically orphan it.... [T]he bill provides for the creation of marketplace-based visual registries that would make it easier for users to find the owners of visual art. And let me emphasize that having users find owners is the real goal of this legislation. But while it might be wise for a visual artist to make use of the registry, nothing requires her to do so. Nor does failure to place a work in a visual registry automatically orphan a work. A user would still have to do a diligent search to find an owner, and might be able to do so without the help of the visual registry."

Wednesday, May 28, 2008

UPDATED: Lots more from Christa Desrets in The Lynchburg News & Advance today. The buyer was "an anonymous phone bidder."

And further thoughts from Heather Hope: "I still firmly stand by my opinion that if Randolph College feels that selling these works is necessary to support the college's mission, then they should be permitted to do so."

One of the guest bloggers over at Matthew Yglesias's place has some fun (probably a little too much fun) with Smithsonian magazine's recent list of the ten "most incredible art heists of the modern era." She writes:

"Whatever the reason, big heists are always fun to think about after the fact. There's the object of the theft to consider .... There are the logistics: if one is going to steal the Gutenberg Bible, one might factor the fact that it weighs 70 pounds into the planning process. Finally, it's giddy and transgressive to think about. Art theft isn't a victimless crime, but it's less directly and immediately harmful than robbing a little old lady or committing murder or defrauding a pension fund. Prints are cool, but it's fun to imagine having the real thing tucked away to look at."

The British Journal of Photography is urging its readers to oppose the U.S. orphan works bill:

"The proposed legislation would legalise the use of such images if an attempt has been made to trace the owner. Critics - ie, pretty much anyone who trades on their own copyright ownership - say the proposals will kill international accords and encourage widespread theft. What's more, to protect your images, you will be forced to register them with private, profit-run databases."

The last bit is, as I've noted before, untrue: registration would not be mandatory under the new law.

I also think it to some extent overstates the level of opposition to the legislation. As this story in the River Cities' Reader points out, the American Society of Media Photographers, for example, supports the House version of the bill (admittedly on a lesser-evil theory: "Passage of an orphan-works bill is nearly inevitable, [its president] claimed, and ASMP feels this is its best opportunity to get a version that's friendly to artists").

BusinessWeek has an update on the art title insurance being offered by ARIS:

"Art title insurance through ARIS has been available for purchase since June, 2006, and it has underwritten more than 300 policies. ARIS clients include private collectors, dealers, art funds, and major museums and investment entities, and the values of the works insured have ranged from $20,000 to $4 million. (ARIS has been approached on a $100 million transaction that hasn't yet taken place.)"

There's a one-time premium ranging from 1.75% to 6.75% of the artwork's value, for "a life-of-ownership policy that can be passed on to heirs. ... In an ownership dispute, ARIS will cover legal defense expenses and the cost of the artwork if it is lost." Authenticity is not covered, however.

Tuesday, May 27, 2008

The New Yorker reminds us that leading Christie's two-day sale of twentieth-century Latin-American art this week is Rufino Tamayo's “Trovador” -- "it is being sold off, despite considerable opposition, by the museum of Randolph College to benefit the school’s endowment."

Anne Yastremski, the unofficial leader of that considerable opposition, had an op-ed in this Sunday's Washington Times arguing that the school has enough money without having to sell any art. She specifically objects to the planned construction "of a costly new artificial turf track and field facility" (adding, for emphasis, that "Randolph College has no track and field team"). She does mention, however, that the school "abolished the American Studies, Anthropology, German, Japanese, and Russian departments this year." So it's clear even from this piece that you can't have everything. There are always going to be trade-offs. The question, as I argued last week, is who gets to make those decisions? Shouldn't school administrators and trustees have some latitude to weigh the costs and benefits of various courses of action -- including, if they deem it best under the relevant circumstances, the sale of certain works of art -- without always having to defend their decisions in court?

The "Truly Educated" Heather Hope argues against a "black-and-white" approach to deaccessioning here.

In today's New York Times, Edward Rothstein writes about James Cuno's "Who Owns Antiquity? Museums and the Battle Over Our Ancient Heritage" (mentioned earlier here):

"Seen in this light the very notion of cultural property is narrow and flawed. ... It may be useful as a metaphor, but it has been more commonly used to consolidate cultural bureaucracies and state control. But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it."

Ralph Esmerian sold his "Peaceable Kingdom" at Sotheby's last week for $9.7 million, reportedly a record for American folk art. As Bloomberg's Philip Boroff reports, Esmerian promised the work to the American Folk Art Museum back in 2000, but "about three years ago also pledged it to Sotheby's as collateral for a loan. ... Esmerian said last month that both Sotheby's and the museum had been aware of the arrangement. Folk Art Museum Director Maria Ann Conelli said in an April interview that a promised donation is merely a promise. 'We work on faith,' she said."

East Hampton gallerist Ruth Vered was taken away in handcuffs this weekend for serving alcohol at a gallery opening without a license. Both the Daily News ("Hamptons Gone Wild") and the Post ("Fine Whine") put it on the front page. You can watch video of the arrest here.

Jen Chung links to the State Liquor Authority's Special Events Permit application. Dealer Ed Winkleman offers some personal reflections on the issue here.

Saturday, May 24, 2008

"One casualty of the bankruptcy of the Salander-O’Reilly Galleries ... is its largely unknown collection of decorative arts: European antiques, architectural ornaments and garden sculpture. The United States Bankruptcy Court ... chose Stair Galleries of Hudson, N.Y., to sell this collection. The 300 lots go on view on Saturday at 549 Warren Street in Hudson for 10 days and at stairgalleries.com."

Friday, May 23, 2008

An article in the Philadelphia Inquirer last week mentioned that Montgomery County is "unlikely" to appeal Judge Ott's latest decision in the Barnes case. The Friends of the Barnes are still thinking about it.

The article also says the County/Friends are "looking west for a strategy" -- a reference to a recent decision of the Montana Supreme Court which the New York Times described as follows:

"The Montana Supreme Court dismissed ... the board of the Charles M. Bair Family Museum in Martinsdale, Mont., saying it breached its fiduciary duties by closing the museum from 2002 to 2005. The court said the board had not spent enough money to give a good start to the museum — home to an eclectic collection of fine European antiques, valuable art works and priceless Indian artifacts. It ordered [the creation of] a new board that has to meet within six months."

I doubt the case will be of much help to the folks in Pennsylvania. The problem for the Barnes opponents, remember, is how to get their foot in the door: Judge Ott threw out the latest round of lawsuits on standing grounds. He never got to the merits. In the Montana case, the lower court found that the relevant "Friends" group did have standing to sue, but, because the Montana Attorney General was also party to the lawsuit, the Supreme Court "decline[d] to resolve whether the [lower court] erred when it determined that the Friends of the Bair had standing in the matter. ... To decide whether the Friends of the Bair have standing would amount to nothing more than an academic exercise."

So all the Barnes Friends really have to go on is a Montana lower court interpreting a Montana statute (Section 72-33-503, conferring standing to sue to enforce a charitable trust on the Attorney General, a co-trustee, or a person possessing a "special interest in the enforcement of the charitable trust"). I'd venture to say that's not quite the game-changer the Barnes opponents were looking for.

Wednesday, May 21, 2008

"Edvard Munch's masterpiece 'The Scream' goes back on display this week for the first time since it was stolen four years ago but has suffered permanent damage, museum officials said Wednesday. Masked gunmen stole the work and another Munch masterpiece, 'Madonna,' in a brazen daylight raid on the Munch Museum in August 2004. Police recovered the paintings ... over a year later. Two men have been convicted and sentenced. The two works show signs of damage despite extensive restoration. At a preview of the exhibition called 'The Scream and Madonna Revisited,' which opens Friday, water damage to the lower left corner of 'The Scream' was clearly visible, as were scrapes to both paintings."

Tuesday, May 20, 2008

A story in the special Summer Travel section of this Sunday's New York Times on how art and law came together to revive the rundown town of Paducah, Kentucky:

"[Artist] Mark Barone ... was fed up with the neighborhood and challenged the city to do something about it. Barone met with the mayor at the time, Albert Jones, and told him how other cities had improved blighted communities by passing a 'rental licensing ordinance' that forced slumlords to bring their buildings up to code. Jones liked the idea, and in 2000, despite constant battles with Paducah’s building owners, the city commission passed the ordinance .... That marked a turning point for Paducah, but for Barone it was only a start. ... With his help, Paducah put together a package of real estate incentives ... including 100 percent financing, low-interest loans and architectural services — in some cases the city even gave away properties if new owners would develop a plan to rehab them."

The always-interesting Virginia Heffernan had a column in this Sunday's New York Times Magazine on an exhibition, at the Kitchen gallery, of videos chosen from YouTube. Rebecca Tushnet (who is also always interesting) gives a tour of the (many) IP issues the project raises, including whether the Times might be liable for linking to the videos ("inducement, anyone?").

In a New York Times op-ed today, Stanford's Larry Lessig weighs in on the orphan works legislation making its way through Congress. He's against it: "This 'reform' would be an amazingly onerous and inefficient change, which would unfairly and unnecessarily burden copyright holders with little return to the public."

He concedes that "the problem of orphan works is real," but thinks this is the wrong remedy:

"The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

"The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a 'diligent effort' is not going to be cheap."

And he takes the opportunity to once again plug his own preferred solution:

"Congress could easily address the problem of orphan works in a manner that is efficient and not unfair to current or foreign copyright owners. Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection. For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1."

Public Knowledge's Gigi Sohn responds to the op-ed here: "What makes this legislation a no-brainer is that with the exception of a handful of small copyright holder groups (who, to my chagrin, have been very effective), there is near unanimous agreement that an orphan works solution is a good idea. There are still some kinks to be worked out in the legislation, but the framework underlying them is basically sound."

A piece in this week's New York magazine notes that "Tom Sachs didn’t bother to get permission from Hello Kitty’s owner, Sanrio, before he installed his enormous Hello Kitty sculptures in front of Lever House." He says "Hello Kitty is so much a part of our popular culture, I don’t think anyone really owns it. It’s something licensed by Sanrio, but I think her spirit and love and purity belong to all of us." There's a good photo of one of the works being loaded in here.

For its part, Sanrio seems to be tolerating the use: a spokesperson is quoted as saying, "You know, there was Marilyn Monroe and Andy Warhol, and then Michael Jackson and Jeff Koons. When you’re an icon, that’s what happens."

UPDATE: More here from Sergio Muñoz Sarmiento, including some additional photos (thank you Ms. Valencia!). One point I'd make is that, while Sergio says "it seems that Sachs’ sculptures .. infringe the intellectual property rights of Hello Kitty’s owner," on a robust enough conception of "transformative purpose" it's possible these could qualify as fair use.

Monday, May 19, 2008

Lee Rosenbaum notes, with displeasure, that Randolph College is about to sell one of the four works it originally planned to offer last November but which were then tied up in a (now withdrawn) lawsuit seeking to block the sale.

Lee offers the following analogy in support of her no-deaccessioning policy: "If someone were to suggest that funds be raised by selling important books from the library, that (one hopes) would be a non-starter: Books go to the core of the college's educational mission."

I remain unconvinced. Would we really object if a university decided it was in the best interest of the school to sell off some books -- presumably because they thought the proceeds from the sale could be put to better use in other ways (like funding athletic programs, or preserving the anthropology department, or supporting additional need-based scholarships, and so on)? What if, by some quirk in the book market, these particular books (which, important as they undoubtedly are, were really only used and enjoyed by a fraction of the university community) were suddenly worth millions and millions of dollars? Do we really want to say that university trustees and administrators can never, under any circumstances, sell off an asset that "goes to the core" of its educational mission, even if the funds raised from the sale would be used to acquire other assets (or fund programs etc.) that also go to the core of its educational mission?

Robert Bernstein and Robert Clarida had a piece ($) in yesterday's New York Law Journal on the recent string of cases dealing with the question whether a photograph of a three-dimensional object is a "derivative work" under copyright law. Two district courts have said no, but the Ninth Circuit and one district court have said yes. I recently noted this issue here and here.

Bernstein and Clarida take the no-derivative-work line (as does Bill Patry): "For what it is worth, the authors of this article consider the [photographs] at issue in all of these cases to be works of photographic expression that depict their subjects but do not recast, adapt or transform them in the manner required of derivative works."

Friday, May 16, 2008

The sad news of Robert Rauschenberg's death this week also means the end of one of the two lawsuits he recently filed over the sale of objects pulled from his trash. The Southwest Florida News-Press's Mary Wozniak reports:

"Rauschenberg's death will nullify the federal lawsuit he filed against Naples artist Robert Fontaine under the Visual Artists Rights Act, said Lawrence H. Kolin of Orlando, Rauschenberg's attorney in the case. ... Kolin said that he has asked Yale T. Freeman, Fontaine's attorney, to consent to dismissal of the case. But Kolin likely will pursue a state lawsuit Rauschenberg filed in the same case, which Kolin amended shortly before Rauschenberg's death. The state lawsuit initially asked only for fact-finding, but now alleges that Fontaine and the HW Gallery of Naples made a deliberate effort to trade on Rauschenberg's fame and creative work by offering discarded copies of Rauschenberg's copyrighted photographs as if they were completed works authorized and signed by the artist."

Lee Rosenbaum points out that yesterday was the last day to redeem the settlement coupons that were issued as part of the resolution of the Sotheby's-Christie's antitrust lawsuits several years back. She notes that, as of March 31, almost $42 million worth were still unredeemed.

Strange, sad twist in the California antiquities investigation: "An internationally known expert on Asian art who was implicated in a scheme to smuggle looted antiquities from Thailand to Los Angeles-area museums died Wednesday at a federal detention center in Seattle four days after being arrested there on a visit from Bangkok. Roxanna Brown, 62, director of the Southeast Asian Ceramics Museum at Bangkok University, had traveled to Seattle for a speaking engagement at the University of Washington, authorities said."

The Los Angeles Times story is here. Derek Fincham comments: "This has been a strange investigation from the outset. There was a massive search of California museums in January, and then nothing has emerged in the five months until this week when Brown was arrested, ... and now this death. There are no indications Brown was mistreated, though certainly the sketchy details give the appearance that the shock of being arrested led to a heart attack. Certainly this is a tragic death, and not the kind of message Federal authorities wanted to send."

"We think growing valuations in the art world are a healthy thing for New York City, which is the artistic capital of America. The high prices enrich artists and gallery owners and shrewd collectors, few to none of whom are 'royalty,' in the sense of vast, generations-long inherited wealth of the sort seen in Europe. ... What the art world boom exemplifies is not a concentration of wealth or royalty but social mobility. It is something to cheer, not to bemoan."

Monday, May 12, 2008

He crafts an argument for First Amendment protection of art . . . but it's not clear to me who he's arguing against.He mentions a 1948 book by Alexander Meiklejohn, and says "the text of the First Amendment says speech, not art." But is there anybody who seriously maintains today that art is not a form of protected speech?

Friday, May 09, 2008

The Montreal Gazette has a story on Peter Paul Biro, the "forensic analyst and art restorer" who's been accused by the Fine Art Registry of using forged fingerprints to bolster the case for authenticating an alleged Pollock painting. (See earlier post here.) Biro says he "has mandated a lawyer to sue." It's hard to see what FAR had to gain -- other than the right to pay a lot of legal fees defending the lawsuit -- by speaking up here.

Thursday, May 08, 2008

A House panel unanimously approved the orphan works bill yesterday. Daryl Lang of Photo District News looks at the split among photo associations that the legislation has "exposed" (pun intended, I assume).

Lang also addresses some of the misinformation about the bill that's been floating around:

"One point of disagreement concerns whether the bill would require artists to register their work with commercial databases to get copyright protection .... Holland has used this point to argue against the bill in several articles. The APA used similar language in a five-page position paper published Tuesday: 'All works, professional or personal, published or unpublished, will have to be registered with as-yet-to-be-created private, commercial registries.' No such requirement appears in either bill currently before Congress, and Perlman and PACA attorney Nancy Wolff say the statement is untrue. Both versions of the amendment mandate the creation of private databases of copyrighted works to facilitate the search for rights owners, but registration would not be mandatory for all creative works."

The Indianapolis Museum of Art and the ACLU have filed a constitutional challenge to a recently passed statute that would require businesses selling pornography to register with the state. Story here in the Indianapolis Star: "The suit's target is House Enrolled Act 1042 .... It requires businesses that sell ['sexually explicit'] material to pay a $250 fee and register with the secretary of state."

Wednesday, May 07, 2008

It seems Louis Vuitton is suing a young artist over a t-shirt she created to help raise awareness of the situation in Darfur. Techdirt's Mike Masnick describes the project thusly: "An artist named Nadia Plesner recently put together a project to try to raise money for the victims of genocide in Darfur. As part of the campaign, she created a t-shirt with a drawn image of a Darfur victim 'pimped' out to look like Paris Hilton -- that is, carrying a designer handbag and a small dressed up dog. The entire profits from the t-shirts are going to help the victims."

Masnick is not impressed with the lawsuit: "While there may be some difference due to the specifics of trademark law in Europe, it's hard to see how this is not overreaching. This is an entirely non-commercial venture. All of the profits are given to charity. The design has some differences from the Louis Vuitton bag, and hardly seems likely to specifically damage the Louis Vuitton brand (the lawsuit will take care of that). The t-shirts are clearly not competing with Louis Vuitton and there's little reason to have anyone think that Louis Vuitton somehow 'endorsed' this effort."

Political philosopher/photography enthusiast Jim Johnson agrees: "The obvious point is that Louis Vuitton must be out of their corporate minds. ... [W]hat sort of publicity do they think they are going to generate? Since they seem not to have figured that one out, maybe I can help. Before long there will be lots of people on the web and elsewhere making fun of LV for being idiots (at best) and callous assholes (at considerably less than best)."

Monday, May 05, 2008

This morning's New York Times mentions the Rockwell-ESPN lawsuit which I noted yesterday:

"[Curtis Publishing Company] has filed suit against ESPN, seeking to bar it from rebroadcasting its television series 'The Bronx Is Burning,' about the 1977 New York Yankees, until it withdraws its use of the [Rockwell] painting, 'Bottom of the Sixth.' In an e-mail message Curtis notified lawyers that ESPN did not have a license to use the painting and was committing willful copyright infringement, the lawsuit said. Court documents said that the painting was shown full screen in the second episode, 'Team in Turmoil.'"

More on the Kent Twitchell settlement from Richard Guzman in the Los Angeles Downtown News. He reports that, in addition to the $1.1 million payout, "Twitchell has until June 2009 to remove the artwork. After that, the building owner will be under no obligation to allow Twitchell access to the site."

Lots of good stuff over at Sergio Muñoz Sarmiento's place, including: the story of a former U.K. public school art teacher who is charged with "making fake ceramic vases and bowls in his garden studio and passing them off as the work of renowned artists"; news of a lawsuit against ESPN for use of a Norman Rockwell painting in their "Bronx is Burning" miniseries without permission; and a pointer to an NPR piece on online art fraud.

I thought this was interesting, from Carol Vogel's piece in Friday's New York Times regarding Gustav Rau, whose estate is selling 10 works at Sotheby's in London in July:

"After his father died in the late 1960s, he sold the family business and went to medical school. He first worked as a doctor in Nigeria, then spent 20 years in what is now Congo, where he built a village hospital. In failing health, Mr. Rau returned to Europe permanently in the early 1990s and settled in Monaco. But he became disoriented, perhaps because, as a doctor, he medicated himself, and was found roaming the streets. Employees of one of his foundations filed lawsuits challenging Mr. Rau’s mental competency, and as a result, his assets, including his art collection, were briefly frozen. But he regained control and in 2001 announced a gift of 700 works to the German branch of Unicef. Included in the gift was one group of works that he stipulated could not be sold for 25 years; the rest could be disposed of to finance medical care. The remaining 300 some works in his collection were left to his estate. ... His estate is selling [these] 10 works now to cover the cost of running his hospital in Africa and other expenses."

Tyler Cowen on Art Institute of Chicago director James Cuno's "excellent" Who Owns Antiquity?: Museums and the Battle over Our Ancient Heritage: "The book criticizes nationalistic identity politics, calls for measures to broaden international access to antiquities, and argues that museums should again be allowed to acquire undocumented antiquities. In other words he favors a cosmopolitan, property rights approach."

Richard Lacayo interviewed Cuno about the book earlier this year (part 1, part 2).

In today's New York Sun, Kate Taylor writes about the Basquiat and Boetti authentication lawsuits. She admits the latter story, in particular, is "tortuous," but gamely attempts a summary:

"[T]he basic gist is this: In 2002, eight years after the artist’s death, [New York gallery] Sperone Westwater presented an exhibition of 15 Boetti works. It sent the catalog of the show to the [Boetti] archive, which contacted the gallery to express concern about one of the pieces. After a representative of Sperone Westwater took the work to Italy so that the archive’s staff could examine it in person, the archive declared the piece to be not authentic, and the gallery removed it from the show. The archive made no comment at the time about the other 14 works in the exhibition, of which Sperone Westwater sold nine. Beginning in 2004, however, the archive started questioning the authenticity of some of the other works the gallery had sold, including one that was purchased by the Art Institute of Chicago. It also effectively nullified a certificate of authenticity it had previously issued for a piece the gallery had sold, asking the gallery to send the work to Rome so that the archive could re-examine it, as the complaint says, 'in light of alleged "episodes of counterfeited works."' There are more details, but, suffice it to say, these seeming vagaries made Sperone Westwater pretty mad. It threatened to sue, but the archive beat it to the punch by bringing the action in Milan. In the New York suit, Sperone Westwater asks the judge to make a declaratory judgment that the Archive has no moral rights claims and also seeks damages 'for the Defendants’ injuries to the Gallery’s business and reputation,' on counts of breach of implied covenant of good faith and fair dealing, negligent misrepresentation, and interference with business relations."

Toward the end, the article also breaks news about a third recent authentication suit:

"A judgment came down yesterday in another case, brought by the owner of a stage set allegedly designed by Alexander Calder against the Calder Foundation .... As in the Basquiat suit, the [plaintiff] in this case ... alleged that the foundation had entered into a contract with the applicant, a musician and conductor named Joel Thome. But the judge didn’t buy it. He granted the defendants’ motion to dismiss, saying that accepting Mr. Thome’s application did not constitute a binding contract."